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In Ogle v. Vane 30 it was held that the plaintiff who had contracted to buy iron from the defendant in July, and who, after waiting at the defendant's request till the following February, then bought in the market, could charge the defendant for damages based on the price in February, though the price was higher then than in July. The court relied to some extent on the fact that though there was forbearance at the defendant's request there was no agreement to forbear, but it seems an agreement would have made no difference, for the agreement would neither have rescinded the original contract nor have had any effect itself except in so far as it caused the plaintiff to delay tendering performance.

§ 597. Pleading.

The difficulty in dealing with the situation seems generally to have arisen from the pleading. If the plaintiff sues on the oral contract or on the written and oral contracts combined, he cannot prove the case upon which he has declared. He must therefore declare on the written contract. It follows that the defendant can never be held liable for failing to do anything except what he undertook by promises stated in the written memorandum, though performance of what either of the parties so promised may be excused by matter in pais. The time of performance, however, is not regarded as a part of the description of the thing promised, even though time is material. An excuse for performing on time does not excuse altogether.31 Therefore, a defendant who promised in writing to convey Blackacre on April 1st and who from one cause or another is excused from performing during that month may be held liable on his promise if he fails to convey on May 1st. Accordingly, if when sued on the promise as written, the defendant pleads the plaintiff's failure to pay or tender on April 1st, the plaintiff may reply that he would have made such payment or tender had not the defendant caused him to delay in so doing until May 1, on which day he made tender. 1 Ohio, 251. See also Kissack v. Westbrook, 134 Ga. 19, 67 S. E. Bourke, 224 Ill. 352, 79 N. E. 619; 403. Scott v. Hubbard, 67 Or. 498, 136 Pac. 653; Whiting v. Doughton, 31 Wash. 327, 71 Pac. 1026. But see Jarman v.

30 L. R. 2 Q. B. 275, L. R. 3 Q. B. 272.

31 See infra, § 845.

§ 598. Parol variation no protection to one who would not otherwise have performed.

Where the extension of time or other variation of the contract is requested by one party because of his inability to perform the contract according to its terms, or in any case where he would have been thus unable, an agreement by the other party permitting an extension or variation cannot be said to be the cause of the failure to perform the contract according to its original terms. Here, if the party guilty of non-performance is allowed to recover or is protected from liability on the original obligation because of his readiness and willingness to perform the extended or varied contract, he is relying merely on a voluntary permission or on an oral contract within the statute. There is no equity forbidding the statute to be set up under these circumstances.32 The situation is not different in its hardship from that which arises when an oral contract within the statute is denied enforcement.

§ 599. Variation of contracts within the statute-Massachusetts doctrine.

A few decisions go beyond the principles stated in the preceding sections, and give effect to an oral variation of a written contract within the statute although one party by means of the oral agreement may not have been the cause of the other party's failure to perform the contract as written. In an early case, 33 the Supreme Court of Massachusetts adopted a distinction that was suggested by Lord Ellenborough in an Eng

32 Stowell v. Robinson, 3 Bing. N. C. 928; Noble v. Ward, L. R. 2 Ex. 135; Plevins v. Downing, 1 C. P. D. 220; Swain v. Seamens, 9 Wall. 254, 271, 19 L. Ed. 554; Lawyer v. Post, 109 Fed. 512, 47 C. C. A. 491; Platt v. Butcher, 112 Cal. 634, 44 Pac. 1060; Bradley v. Harter, 156 Ind. 499, 60 N. E. 139; Walter v. Victor G. Bloede Co., 94 Md. 80, 50 Atl. 433; Rucker v. Harrington, 52 Mo. App. 481; Warren v. Mayer Mfg. Co., 161 Mo. 112, 61 S. W. 644; Hasbrouck v. Tappen, 15 Johns. 200; Clark v. Fey, 121 N. Y.

470, 24 N. E. 703; Clark v. Guest, 54 Ohio St. 298, 43 N. E. 862; Thompson v. Robinson, 65 W. Va. 506, 64 S. E. 718. See also Dana v. Hancock, 30 Vt. 616, and infra, § 690.

33 Cummings v. Arnold, 3 Metc. 486, 37 Am. Dec. 155. The defendant had agreed to sell goods on eight months' credit and a written memorandum was made. Subsequently there was an oral agreement that the goods should be paid for in cash. The defendant thereafter refused to deliver on credit, and on being sued was held justified.

lish decision 34 which was soon thereafter repudiated in England, 35 between the contract and its performance. "The statute," Wilde, J., said, "requires a memorandum of the bargain to be in writing, that it may be made certain; but it does not undertake to regulate its performance." The court then proceeded to argue that as a substituted performance would operate as a satisfaction of the original contract, and that as tender is equivalent to performance, the plaintiff could sue on the original contract and prove in support of it an offer to perform with the alterations later agreed upon. But the sounder view even in the case of a binding contract of accord, is that tender is not equivalent to performance, and there is no satisfaction even if the tender is wrongfully refused.36 However this may be, a tender where there is no obligation to accept it cannot possibly have the effect of performance. The learned author of the leading text-book on the subject " gives his approval to the decision, but the current of authority seems strongly against it.

§ 600. Conflict of laws.

As most provisions of the Statutes of Frauds prevailing in different States of the Union are identical in the several jurisdictions, questions of the conflict of laws arise less frequently on most clauses of the statute than otherwise might be the case; but the fact that a large number of States have no provision corresponding to the seventeenth section of the English Statute of Frauds makes it peculiarly easy for questions to arise in the sale of goods involving the conflict of laws. It was decided in England in the often-cited case of Leroux v. Brown 38

34 Cuff v. Penn, 1 M. & S. 21.

35 Stead v. Dawber, 10 A. & E. 57, and Marshall v. Lynn, 6 M. & W. 109.

36 See infra, § 1843.

37 Browne, Statute of Frauds, § 424. See also Smith v. Loomis, 74 Me. 503; McDonald v. Union Hay Co. (Minn.), 172 N. W. 891; Lee v. Hawks, 68 Miss. 669, 9 So. 828. Compare Wiessner v. Ayer, 176 Mass. 425, 57 N. E. 672; Rosenfeld v. Standard Bott

ling & Extracts Co. (Mass.), 122 N. E. 299. In Nebraska it seems to be held that the agreement as orally varied is valid if there is consideration for the variation. Bowman v. Wright, 65 Neb. 661, 91 N. W. 580; Lincoln Realty Co. v. Garden City Land Co., 94 Neb. 346, 143 N. W. 230; but the requirement of a writing is independent of and additional to the requirement of consideration.

38 12 B. 801.

that an oral contract not to be performed within a year, which was made in France, and not required to be in writing by the law of that country, could not be enforced in England. The court took a distinction between the wording of the fourth section of the English statute which was the section involved and the wording of the seventeenth section. The fourth section provides that "no action shall be brought" unless there is a writing. The seventeenth section provides that no contract which does not satisfy the statute "shall be allowed to be good." The words of the fourth section, the court held, indicated that the statute related to the remedy, and, therefore, the plaintiff could not maintain his action. There are dicta in the case that the seventeenth section relates to the substance of the contract, not to the remedy, and that, therefore, in sales of personal property the statute in force where the contract was made would govern the case. In the United States in contracts for the sale of goods, these dicta have been followed.39

The distinction taken in the English case between the fourth and the seventeenth sections seems to have very little basis, and under other sections of the statute than that which relates to sales of goods, there are decisions in which the lex loci contractus has been held, applicable. 40 But other decisions, like

39 Allen v. Schuchardt, 1 Fed. Cas. No. 236; Low v. Andrews, 1 Story, 38; Denny v. Williams, 5 Allen, 1; Kling v. Fries, 33 Mich. 275; Houghtaling v. Ball, 19 Mo. 84, 59 Am. Dec. 331, 20 Mo. 563; Dacosta v. Davis, 4 Zab. 319; Hunt v. Jones, 12 R. I. 265, 34 Am. Rep. 635; Canale v. Pauly & Pauly Cheese Co., 155 Wis. 541, 145 N. W. 372; Green v. Lewis, 26 U. C. Q. B. 618.

40 Miller v. Wilson, 146 Ill. 523, 34 N. E. 1111, 37 Am. St. Rep. 186 (contract for sale of land); Raphael v. Hartman, 87 Ill. App. 634 (contract not to be performed within a year); Cochran v. Ward, 5 Ind. App. 89, 97, N. E. 795, 31 N. E. 581, 41 Am. St. Rep. 229, 235 (contract for sale of land); Stout v. Ennis, 28 Kan. 706, 713

29

(contract not to be performed within a year); Madry v. Young, 3 La. 160 (contract for sale of slaves); Fox v. Matthews, 33 Miss. 433 (contract for sale of slaves); Abell v. Douglass, 4 Den. 305 (contract for sale of land situated in the State where the contract was made); Goldstein v. Scott, 76 N. Y. App. Div. 78, 78 N. Y. S. 736 (contract of real estate agent for commission); Daniels v. Rogers, 108 N. Y. App. D. 338, 96 N. Y. S. 642 (contract for sale of land); Allshouse v. Ramsay, 6 Whart. 331, 37 Am. Dec. 417 (guaranty); Callaway v. Prettyman, 218 Pa. 293, 67 Atl. 418 (authority to sell real estate); Anderson v. May, 10 Heisk. 84 (lease of land situated in the State where the contract was made).

wise involving clauses other than that relating to the sale of goods, regard the statute as imposing a rule of local procedure and apply the lex fori.41 Still another view has not infrequently been taken in regard to contracts for the sale of an interest in land, the statute in force in the place where the land is situated being held to control the case.42 The statute in force in the place of performance has not generally been thought material, and in the few cases where it has been so held, that law was also the law of the forum.43 Finally it has been suggested that the intent of the parties as to the jurisdiction to govern the transaction is the determining factor.44 In view of the rule generally recognized that the Statute of Frauds establishes a rule of procedure or of evidence and that a failure to comply with its provisions makes a contract unenforceable only, 45 it is difficult to see how it can fairly be said that the satisfaction of the statute relates to the substance of the contract rather than to the remedy upon it. The distinction suggested by the English court between the words "no action shall be brought" and "no contract shall be allowed to be good," has not been generally adopted in other cases than those involving the conflict of laws, and the distinction seems an undesirable refinement. In the United States where the precise words of both sections have frequently been changed and the

41 Obear v. First Nat. Bank, 97 Ga. 587, 25 S. E. 335, 33 L. R. A. 384 (promise to pay a barred debt); Barbour. Campbell, 101 Kans. 616, 168 Pac. 879; Emery v. Burbank, 163 Mass. 326, 39 N. E. 1026, 28 L. R. A. 57, 47 Am. St. Rep. 456 (promise by Massachusetts testator to make a will); Third Natl. Bank v. Steel, 129 Mich. 434, 88 N. W. 1050, 64 L. R. A. 119 (representation as to credit); Heaton v. Eldridge, 56 Ohio St. 87, 46 N. E. 638, 36 L. R. A. 817, 60 Am. St. Rep. 737 (contract not to be performed within a year).

42 Thomas J. Baird Inv. Co. v. Harris, 209 Fed. 291, 126 C. C. A. 217; Wolf v. Burke, 18 Colo. 264, 32 Pac. 427, 19 L. R. A. 792; Miller v. Wilson, 146 Ill. 523, 34 N. E. 1111, 37 Am. St.

Rep. 186; Cochran v. Ward, 5 Ind. App. 89, 31 N. E. 581, 51 Am. St. Rep. 229, 235; Anderson v. May, 10 Heisk. 84; Dal v. Fischer, 20 S. Dak. 426, 107 N. W. 534. In several of these cases the sites of the real estate was in the same jurisdiction where the contract was made.

43 Young v. Pearson, 1 Cal. 448 (contract of partnership); Davenport v. Karnes, 70 Ill. 465 (antenuptial agreement); Turnow v. Hochstadter, 7 Hun, 80 (contract not to be performed within a year).

44 Wilson v. Lewiston Mill Co., 150 N. Y. 314, 44 N. E. 959, 55 Am. St. Rep. 680. See comments on this case in-Goldstein v. Scott, 76 N. Y. App. Div. 78, 78 N. Y. S. 736. 45 See supra, §§ 71, 72.

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